Freezing child’s age for green card purposes (3)

Here’s another example: Ms. Nursie, a Filipina nurse working in the US under a temporary working visa, was petitioned by her US employer for a green card when her minor son (Childo) was 18 years old.

The United States Citizenship and Immigration Services (USCIS) approved the petition after 2 years when Childo was already 20 years old. Despite the petition’s approval, Ms. Nursie and Childo could not apply for adjustment of status to permanent resident (“green card”) because the petition was not yet current (no visa was available).

Two years after the petition’s approval (when Childo was already 22 years old), a visa became available.

Could Childo still get a green card (as a derivative beneficiary of his mother) despite being over the age of 21?

Yes, because based on the Child Status Protection Act (CSPA)’s age calculation formula, Childo’s age is frozen at 20 when the number of years that the petition is pending (2) is subtracted from Childo’s age (22) when a visa first becomes available. However, Childo is required to apply for adjustment of status within one year of visa availability.

Having said that, an interesting postscript to the foregoing discussion is the recent USCIS policy change regarding the reckoning point in visa availability determination for age calculation purposes vis-à-vis the process of applying for adjustment of status to permanent resident in the US.

To alleviate the misery of US-based adjustment of status applicants with aging out children, the USCIS issued new guidance last year that aimed to stabilize as well as liberalize the determination of when a visa first became available for CSPA purposes.

As part of the overall immigration process, the US State Department issues a Visa Bulletin every month that summarizes the availability of immigrant visas and contains a list of monthly cut-off dates for visa issuance within the various immigrant visa categories.

The monthly cut-off date, in immigration parlance, is synonymous with the so-called “priority date,” which is a visa applicant’s place in the line or priority queue for immigrant visa issuance.

A priority date is assigned to intending immigrants through various ways, but generally through the filing of a Form I-130 petition with the USCIS in family-based cases or a labor certification (LC) application with the US Department of Labor (USDOL) in employment-based cases.

Thus, the date of filing is considered the priority date. Some employment-based cases (like the sponsorship of RN’s) are required to be filed directly with the USCIS, in which case the USCIS filing date is the priority date.

For most immigrant visa categories, there are not enough visas available due to the worldwide quota limitations and the oversubscription of the limited per-country allocations. Thus, the Visa Bulletin serves as a reference guide for intending immigrants to see if their “priority date” is already current, meaning a visa is already available for their case.

A priority date is considered current when it is earlier than the monthly cut-off date listed on the most recent Visa Bulletin that applies to the relevant visa category.

There are two charts included in the monthly Visa Bulletin: the Dates For Filing Chart (‘DFFC’) and the Final Action Dates Chart (‘FADC’).

The DFFC dates serve as the reckoning point as to when US-based applicants are permitted by the USCIS, based on forecasted visa consumption patterns, to submit the required adjustment of status paperwork in anticipation of visa availability in the foreseeable future subject to the USCIS’ monthly discretion, while the FADC contains the cut-off dates when immigrant visas are actually available to be issued based on the green card applicants’ respective priority dates.

(To be continued)